NASCIMBENE & NASCIMBENE

[2019] FamCA 370

FAMILY COURT OF AUSTRALIA

NASCIMBENE & NASCIMBENE [2019] FamCA 370

FAMILY LAW – PROPERTY – Interim of property pending trial – Just and equitable and otherwise appropriate to make orders for interim sale – costs reserved.

Family Law Act 1975 (Cth)

APPLICANT: MS NASCIMBENE

RESPONDENT: MR NASCIMBENE

FILE NUMBER: MLC 9816 of 2016

DATE DELIVERED: 28 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 28 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: M Pavone

SOLICITOR FOR THE APPLICANT: Westminster Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The husband have leave to file and rely upon his affidavit sworn or affirmed on 27 May 2019 and that document be placed on the Court file marked “Filed and served as sealed”.

2. The husband have leave to file a Notice of Address for Service.

3. The husband in his capacity as a director of Business C Pty Ltd (“Business C”) and also in his personal capacity forthwith sell shares owned by either Business C or himself to the net value of $50,000.

4. The sum of $50,000 be paid at first instance to the husband as and by way of a part property settlement and paid to the wife in payment of:-

   (a)       arrears of spousal maintenance - $16,000;

   (b) spousal maintenance calculated at the rate of 2,000 per week until the Trial date (10 September 2019) being 15 weeks - $30,000; and

   (c)       rate arrears 3 x $1,343 = $4,029.

5. The parties do all such acts and things and sign all such documents as necessary to sell forthwith all the following:-

   (a)       G Street, Suburb H;

   (b)       J Street, Suburb B; and

   (c)       Business C.

6. The net proceeds of sale of the properties set out in paragraph 5 of this Order be paid to the National Australia Bank in satisfaction of the debt set out in the letter from the National Australia Bank to the husband dated 1 May 2019 being Annexure “A” to his affidavit sworn 27 May 2019 and filed 28 May 2019.

7. The solicitor for the wife be at liberty to serve a sealed copy of this Order to Mr J, Associate Director National Australia Bank, Melbourne.

8. The parties jointly have sale of the real and personal property provided for herein.

9. There be liberty to each party to apply in relation to implementation of this Order and for the purpose of doing so to contact my Associate – email … – to have any further application listed before me.

10. The wife’s costs of an incidental to her application in a Case filed 10 May 2019 and including costs of this day be reserved for subsequent determination by me. In the event that the wife pursues an order for costs, without prejudice to any basis upon which she may seek costs, the wife provide a memorandum of such costs drawn in accordance with the Schedule to the Family Law Rules.

IT IS DIRECTED:

1. That the six point Site Data Sheet prepared by the husband be marked Exhibit “H1” and remain on the Court file.     

2. The wife’s minute of proposed orders sought be marked Exhibit “W1” and remain on the Court file.

3. The correspondence from Mr N, solicitor, dated 7 May 2019 be marked “W2” and remain on the Court file.

4. That the literature published by the Court, being Document 4 (Family Violence Information Sheet) and Document 5 (Family Violence – Personal Cross-examination) be annexed to this Order.

IT IS FURTHER ORDERED THAT:

1. My reasons for decision this day be transcribed and when settled be placed on the Court file and distributed to the parties.

2. The Application in a Case of the wife filed 10 May 2019 be otherwise dismissed.

3. The application for final orders remain listed for final hearing before me to commence on 11 September 2019.

AND IT IS NOTED BY THE COURT:

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

B.That s 102NA(2) of the Family Law Act 1975 was discussed personally with the parties but no order was sought or made on the basis that the requirements of the provision were not met.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nascimbene & Nascimbene has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9816 of 2016

MS NASCIMBENE

Applicant

And

MR NASCIMBENE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an urgent application of the wife filed on 10 May 2019.  She seeks orders to effect compliance by the husband with orders that stopped him selling various real properties, a sale of some shares and the application of the proceeds of sale to arrears of spousal maintenance which are outstanding in the sum of approximately $10,000 and some prepayment of spousal maintenance.  The wife also seeks compliance with an order that the husband pay the outstanding rates in relation to the former matrimonial home at D Street, Suburb E.  She seeks costs of the application. 

2. The matter is in my docket and is set down for a final hearing to commence on 10 September 2019.  The husband has previously been represented by solicitors.  He says he is now not represented.  He has completed a notice of address for service.  And he has nominated the property at K Street, Suburb L, as his address for service and given an email address.  Henceforth, documents sent by email or post to the husband at these addresses are deemed to be served on him. 

3. The matter was listed at 9 am, having regard to the urgency of it, but the husband did not attend Court until after 10 am.  He said that he was stuck in traffic.  He drove from his residence.  I have warned the husband that henceforth, he should expect that litigation will not wait for him to arrive.  If the matter is listed, he needs to be in the building a good half hour before he is required in Court. 

4. The husband opposes some of the orders sought by the wife.  He has produced today an affidavit, apparently sworn on 27 May 2019, in which he sets out a request for various orders to be made today.  I have provided the husband with leave to file and serve that affidavit as sealed, and I note that Mr Pavone has had a copy since earlier this morning.

5. I have also been handed a letter from Mr N LLB, solicitor, addressed to the wife’s solicitors, Westminster Lawyers.  In this correspondence, Mr N informs that the husband is “currently unrepresented” and that he is merely writing to the wife’s practitioners saying he is merely a friend of the husband. 

6. The proceedings have been in my docket for some considerable time.  They have, I seem to recall, on more than one occasion reached the point of final hearing.  Most recently, the matter has been set down for hearing before me to commence in mid-September 2019.  There have been numerous interim applications. 

7. The evidence to date has not been tested, but a significant number of orders have been made against the husband and prescribed what he should do by way of completing and lodging taxation returns, keeping banks advised of financial viability and the like.  He is required, pursuant to orders made on 11 November 2006, to pay spousal maintenance to the wife in the sum of $2,000 per week.  Those payments were apparently made but are currently only made until 3 April 2019 and are now in arrears in the sum of approximately $10,000. 

8. The wife comes to Court today seeking compliance with orders and the sale of various real properties and businesses.  The husband has requested, in his application in a case, that certain properties be sold so as to free up some capital for the parties and, presumably, allow him to be represented in the property proceedings.  Notably, the husband alleges financial hardship and that he does not have income or resources at his disposal to meet various liabilities, including a payment of income tax instalment, the mother’s maintenance, taxation debts and the like. 

9. The husband seeks that properties which he is currently restrained from selling be released for sale.  One such property is at F Street, Suburb E.  The wife proposes to keep the property by way of a final property adjustment between herself and the husband.  I’m unable at this point, without relevant affidavit evidence and seeing that evidence tested, to make a determination about whether it is just and equitable that the property be sold or whether the wife should retain it.  This is a long marriage with many and varied contributions and other factors to be weighed.  I certainly could not say, at this stage, that the wife will not be entitled to that property in specie.

10. The husband presses for a sale of the property on the basis that it is an attractive property to the bank to realise.  Fundamentally, by virtue of the manner in which the case has been presented, I am not in a position to determine whether it is just and equitable or proper for that property to be sold.  To accede to the husband’s application would be to predetermine the wife’s application to retain the property.  It would not be proper to do that at this stage.  It is not a proposal of the husband’s, of which the wife has much notice.  The husband is before the Court on the wife’s urgent application arising out of his alleged non-compliance.  The wife’s application for final orders lists the F Street, Suburb E property as real estate she seeks to retain. 

RECORDED  :  NOT TRANSCRIBED

1. The properties which the wife seeks to sell on an interim basis are likely to realise in the vicinity of 2.2 million, less selling expenses.  Mr Pavone’s application is that those moneys be paid to the lending bank and secured creditor, National Australia Bank, in reduction of debt.  The husband’s case is that one of the properties should be subject to a delayed sale because of an insurance claim.  The husband has had an insurance claim of long standing in relation to that property at Suburb H.  I do not recognise, and neither is there any evidence that the husband has put before the Court, on which I could be satisfied that the insurance claim will be in any way jeopardised by his disposition of the property. 

2. On 7 May 2019, Mr N, barrister and solicitor, wrote to the wife’s solicitors saying that he had that day met with the husband and the husband’s accountant.  He states, “I am not becoming solicitor on the record but write this letter as a friend of Mr Nascimbene, who is currently unrepresented.”  He sets out certain matters to do with what the husband says was his indebtedness and the fact that the National Australia Bank will not extend facilities beyond 30 June 2019.  Interestingly, the final paragraph on the first page of the letter describes the property as – “the property at Suburb H will be placed on the market forthwith”.  Today the husband also said he needed to occupy the Suburb H property until a property in Suburb B becomes available for occupation.  However, Mr N’s letter says, “Mr Nascimbene has moved into residence at A Street, Suburb B.” 

3. Today the husband appears on his own behalf.  He has filed a notice of address for service.  That will subsist until a practitioner files a notice of address for service for him.  But the husband does not contradict what Mr N, Solicitor, has written in the letter of 7 May 2009.  It appears that for today’s purposes, he was speaking on behalf of the husband, although not as his solicitor on the record in these proceedings. 

4. The other relief sought by the wife and apparently not contested by the husband is that certain shares in Company M which are owned by Business C Pty Ltd can be sold.  These shares have a value of not less than $50,000.  Where the parties are apart is that the wife says that these should be sold in order to pay her arrears of maintenance, the arrears owing by way of rates on the former matrimonial home, which the husband is obliged to pay, and an amount which would cover the wife’s spousal maintenance entitlement at the currently ordered rate of $2000 a week between now and the final hearing. 

5. The husband says that the shares can be sold, but that the proceeds should be applied to pay his wages and some of the business’s creditors.  He says insofar, as the wife is without spousal maintenance, that he would pay $1000 for eight weeks – and I don’t understand his proposal about paying arrears – or payment of the rates, which he says are $4029.  The husband says that he cannot afford the currently ordered sum of $2000 per week.  However, he does not come to Court with a statement of financial circumstances demonstrating a change in financial circumstances.  He comes to Court in response to an enforcement application by the wife rather than on his own initiative. 

6. The husband may ultimately be able to make out a case that he should have some wages and that some other creditors be paid.  But in the meantime, her spousal maintenance order is significantly in arrears. 

7. I will make an order for the sale of the shares which have been identified by the husband as able to be sold.  Business C Pty Ltd, which is the owner of the shares, is an entity controlled by the husband and the wife.  I will order that the proceeds of sale of the shares be applied as is sought by the wife.  There are other shares which are owned either by corporate entities or the husband.  And if the husband wants those sold, he can put together an application in proper form making full disclosure of his financial position and seek orders for the sale of more shares to pay liabilities which he now says should be paid.  Capital Gains Taxation liability can be looked at later. 

8. It is common ground that a property at J Street, Suburb B can be sold.  And I will order that be so. 

9. In relation to the property at Suburb H, I’ve already mentioned that there’s no impediment apparent from the correspondence from Mr N to that being sold.  The husband says orally and in a note handwritten to the Court today that it could jeopardise an insurance claim that he has on the property.  But, as I have said, there is no evidence of that.  I will also order that that property be sold. 

10. The parties agree that a business called Business C can be sold. The wife originally sought that the proceeds of sale of that interest be paid to the parties’ daughter, who has been operating the business. The husband now says that the proceeds should be paid in reduction of liabilities. I will order that the proceeds of sale be applied in reduction of the moneys due to the bank. The parties’ daughter can consider her position in the context of a final hearing. Section 79(1)(d)(i) of the Family Law Act 1975 (Cth) contemplates a property adjustment in favour of “a child of the marriage.” The relief granted today does not dictate any rights she may have.

11. This fairly much exhausts realisation of all of the properties, real or personal, which one way or another the parties agree should be sold in the interim.  To the extent that I have not acceded to the husband’s requests that proceeds of sale be diverted elsewhere than to National Australia Bank or to the wife, there appear to be other real or personal properties that can be sold to meet the liabilities which he says ought be met.  However, he should bear in mind that there are extant injunctions restraining him from disposing of certain property and that the Court will not look kindly on a breach of those orders.  It is for him to approach the Court and get those properties released from the restraining order before he takes steps to sell them.  To the extent that Mr N’s correspondence of 7 May 2019 purported to assume that the wife was not objecting to the sale of real properties, it has been stated categorically by counsel for the wife today that she does oppose the husband acting contrary to the injunctions save over and above as I will order today. 

RECORDED  :  NOT TRANSCRIBED

1. The wife’s position is that the parties can jointly have conduct of the sale of the real properties and the business and, to the extent necessary, the shares.  I hope that will work.  I am somewhat more pessimistic than the wife.  The matter can come back to me on an application, and, providing that there is cogent and admissible evidence in support of an application, I will deal promptly with any remedies to implement the order that I make today. 

2. I expect that the properties will be sold well before the proceedings come before me for final hearing.  If there is some snag or some difficulty, then the parties should return to Court on an urgent application, which will be set down for hearing after consultation with the case coordinator, …, and my associate, …. 

3. There remains an issue about whether or not the bank should be provided with a copy of this order.  The wife seeks an order that she serve a sealed copy of the order on the associate director of the National Australia Bank.  The husband has written that there is “no gain to send orders to the bank; it may cause more harm than good”.  The wife is entitled to take such steps as she considers appropriate to preserve the assets of the parties and forestall any appointment by National Australia Bank of a receiver or from the Bank taking action that could mean that the property interests of the husband and wife are realised for less than they could get if sold privately.  The husband’s material satisfies me that there is a real threat that the National Australia Bank may take realisation proceedings in the short term. 

4. I will make that order in terms of the wife being at liberty to do so.  The husband is also at liberty to do so.  She is not, however, compelled to do so.

ORDERS DELIVERED

1. In summary, I have taken action in relation to those properties, real or personal, which it appears are agreed to be sold before a final hearing, and I have applied the proceeds in a way that appears to be sensible, but which can be adjusted at a final hearing.  I am satisfied that it is just and equitable to exercise the Court’s power to make orders for a disposition of properties on an interim basis.  I consider that the order I make is appropriate in all of the circumstances of the case.

2. The wife seeks costs.  Her application was broadly drawn but she has largely succeeded in her application to address non-payment of spousal maintenance and to stave off a receiver being appointed by the major secured creditor.  I require a memorandum of costs drawn in accordance with the Family Law scale.  I do not limit the wife to the basis on which she can apply to have costs calculated but I require at least a memorandum of itemised costs.  This is so that the husband can assess quantum and the Court is in a reasonable position to fix the quantum of costs, if costs are to be ordered at all. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 28 May 2019.

Associate: 

Date:  6 June 2019